Problems with Reasonable Perception Language and Enforcement of General Policies

Last August, I wrote a blog post about the mayor of Tulsa accepting free legal services from an attorney who represented Tulsa in certain matters, that is, from a city contractor. The matter involved the council possibly filing charges against the mayor for allegedly lying about a federal police grant.

Due to poor language in the ethics code, and some poor interpretation, what is a fairly straightforward gift issue that should have been quickly settled turned into a complex investigation and a questionable report by the city auditor. The auditor's report was released on Thursday, according to an article yesterday in the Tulsa World.

Free Legal Services as a Public Service
Oddly, the report states that the free legal services "were intended as a public service and not for personal gain." Yet it then recognizes that there was a "personal benefit to the Mayor through avoidance of personal legal expenses." Isn't avoidance of an expense a personal gain?

It sometimes happens that, in a case where there are important, often constitutional implications, and a government agency lacks the resources to handle the case, a law firm, professor, or institute will offer its services pro bono, which happens to be short for pro bono publico, that is, for the public good. But this was not such a case. It appears to have been a political case involving alleged personal conduct.

Is it really more a public service to offer free legal services to a mayor than it is to fix up the house at which he entertains dignitaries and sleeps the sleep necessary to give his all to the public?

Reasonable Perception of Influence
The auditor concluded, "There reasonably could be a perception of influence of performance of official duties due to the personal benefit received and the Mayor’s position to potentially approve future contracts between the City and the Contractor." The reason for the complexity of this conclusion is the poor language of the city's gift provision:

City officials and their immediate family shall not directly or indirectly solicit or receive gifts, entertainment, or other favors which may influence or be reasonably perceived as influencing a City official in the performance of their official duties.

This provision requires an official to determine what might be reasonably perceived, rather than determine that he should not accept a gift from a government contractor. Since the mayor perceived the matter as a public service, as confirmed by the auditor, he had no reason to consider that it would be perceived any different by others. He's the mayor after all, and anyone who helps the mayor helps the city.

In other words, the perception, reasonable or otherwise, of mythical others is poor guidance for determining whether to accept a gift. That's why the concept of "restricted sources," that is, those doing business with the local government, was invented. There is no excuse for accepting gifts from them, nor is there a lack of clarity in terms of guidance.

Enforcing General Policies
Worse guidance, however, is provided in the General Policy provision, the first one in the Tulsa ethics code. The provision contains a mix of general policy and what appear to be more specific prohibitions. For example, it says that "public office and public employment are positions of public trust imposing the duty of a fiduciary," a common phrase that emphasizes how important the need is to deal responsibly with conflicts of interest. What it does not mean is that the law of fiduciaries is to be applied to all public servants in every situation.

The general policy provision concludes, "and such individuals shall not use their public positions for personal gain nor should they act in such a way as to give an appearance of any impropriety."

That "shall not" appears to make this sentence an enforceable prohibition, even though it only applies to the first of the clauses. But these two clauses are also no more than aspirational. That is, they are not enforceable. The first clause is effectively what government ethics is all about, but there is no definition of what "personal gain" includes. If it was intended to be enforceable, this term would have been defined. And it would not have been included under General Policy

The second clause is also a basic statement of government ethics, and it is even more amorphous and undefined. It is what an ethics adviser would say to someone inquiring how they should act. It is not what an ethics enforcer should say when finding a violation.

And yet that is exactly what happened in this matter. The auditor treated the appearance of impropriety language as enforceable, and found that the mayor had violated it.

This happens again and again. It is clearly not enough to call a list of aspirational policies something like "General Policy." It has to be expressly called something like "Aspirational Provisions," or at the beginning or end of the provision it has to be expressly stated, "This provision is for guidance only. It is not enforceable." Otherwise, reasonable people will perceive the language as not enforceable, and they will find themselves violating it when less reasonable people perceive it otherwise.

Robert Wechsler
Director of Research-Retired, City Ethics

---